Full Judgment
S.L. Kochar, J.
1. This criminal revision is directed against the order dated 9.8.2001 passed by the Additional Sessions Judge, Agar in Cr. Revision No. 52/2000 arising out of the order passed on 21.1.2000 by the Judicial Magistrate, First Class, Susner in Cr. Case No. 45/1997 thereby rejecting the application filed Under Section 127(3)(b) of the Code of Criminal Procedure (hereinafter referred to as the Code) filed by the non-applicant Shajad for cancellation of the order of maintenance. The learned Addl. Sessions Judge, while allowing the revision, set aside the order of the JMFC and allowed the application made Under Section 127(3)(b) of the Code.
2. The contention of the learned Counsel for the applicant is that since the order of maintenance was passed in favour of the non-applicant Raisabee Under Section 125 of the Code by order dated 28.1.1985, now the same cannot be set aside under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as Muslim Women Act for short) and she is entitled for receiving the maintenance as per order dated 28.1.1985. Learned Counsel has relied on a Division Bench decision passed in Munni Begum v. Abdul Sattar, 2001 (1) MPJR 144.
3. Brief facts of the case are as under:
That, in the year 1984, the non-applicant Raisabee filed an application Under Section 125 of the Code for grant of maintenance against the non-applicant-husband Shajad. This application was finally decided by order dated 28.1.1985 in favour of the wife directing the husband to pay maintenance @ Rs. 200/- per month. On 10.9.1997, the applicant Shajad submitted an application Under Section 127(3)(b) of the Code on the ground that in accordance with the Muslim custom on 12.8.1997, he divorced his wife by verbal declaration as well as in writing and also sent the Talaknama by Registered Post. He also submitted that in execution proceedings of maintenance amount he has deposited the settled Mehar amount of Rs. 500/- and maintenance amount of Iddat period. Now since he had divorced his wife and also deposited the Mehar amount and maintenance amount for Iddat period, the wife would not be entitled to recover maintenance amount in pursuance of the order passed by the Court below on 28.1.1985.
4. The non-applicant corttesied the application Under Section 127(3)(b) of the Code filed by the husband denying the factum of divorce. She has also denied the receipt of Talaknama. She contended that even in Muslim Women Act, the divorced wife is entitled for maintenance. The learned Trial Court, after hearing both the parties, dismissed the application Under Section 127(3)(b) of the Code of the non-applicant-husband Shajad having held that the Talaknama was not duly received by the wife and she was also not legally divorced by the verbal declaration or in writing. Against this order, the husband went up in revision. The learned Revisional Court allowed the revision filed by the non-applicant-husband having held that the written intimation dated 12.8.1997 was duly sent by Registered Post to the applicant-wife and the same must have been received by her. The envelope (Ex. P/l) and Talaknama (Ex. P/3) have been duly proved. He has examined Mohd. Salim (A.W. 2) to prove his signature. This witness has testified in the Court that before him, the husband had given divorce to his wife. The Registered-postal-envelope (Ex. P/l) returned back with an endorsement that the applicant-wife refused to take the same. Therefore, the same was returned back. The learned Revisional Court has relied on the statement of the husband Shajad and his witness Mohd. Salim and the document Ex. P/l for the purposes of divorce given by the non-applicant to the applicant. There appears no irregularity, illegality or perversity in the order passed by the Revisional Court in arriving at the finding that the non-applicant-husband had given divorce to the applicant-wife on 12.8.1997 by oral declaration as well as in writing and the same was sent by Registered Post to the wife which she refused to accept.
5. Since, the intimation was sent by Registered Post, there will be a presumption of receipt of the same by the applicant-wife.
6. Learned Counsel for the applicant has placed much reliance on the judgment delivered by the Division Bench of this Court in Munni Begum v. Abdul Sattar (supra), but the same is not applicable in the facts and circumsances of the present case. The Division Bench has decided the question of applicability of Section 7 of the Muslim Women Act in execution proceedings initiated by the wife Under Section 128 of the Code. In the present case, the question of applicability of Section 7 of the Muslim Women Act is not involved. But the hvisband has filed an application Under Section 127(3)(b) of the Code and sought order of cancellation of maintenance passed in favour of the wife on 28.1.1985, prior to the enactment of Muslim Women Act. According to him, he has given divorce to his wife after the order of maintenance passed in her favour and he has also deposited the Mehar amount as well as the maintenance amount of Iddat period. Therefore, the order of maintenance was liable to be set aside. But, in view of the Supreme Court judgment passed in Mohd. Ahmed Khan v. Shah Bano Begum & Ors., 1985 Cri. LJ 875, the Supreme Court has held in paras 28 and 29 as under:
'It does appear from this speech that the Government did not desire to interfere with the personal law of the Muslim through the Criminal Procedure Code. It wanted the Muslim community to take the lead and the Muslim public opinion to crystallise on the reform in their personal law. However, we are not concerned with the question whether the Government did or did not desire to bring about changes in the Muslim Personal Law by enacting Sections 125 and 127 of the Code. As we have said earlier and, as admitted by the Minister, the Government did introduce such a change by defining the expression vwife' to include a divorced wife. It also introduced another significant change by providing that the fact that the husband has contracted marriage with another woman is a just ground for the wife's refusal to live with him. The provision contained in Section 127(3)(b) may have been introduced because of the misconception that dower is an amount payable 'on divorce'. But, that cannot convert an amount payable as a mark of respect for the wife into an amount payable on divorce.
It must follow from this discussion unavoidably a little too long, that the judgments of this Court in Bai Tahira (AIR 1979 SC 362) (Krishna Iyer, J., Tulzapurkar, J. and Pathak J. and Faztunbi (AIR 1980 SC 1730) (Krishna Iyer, J., one of us, Chinnappa Reddy, J. and A.P. Sen, J.) are correct. Justice Krishna Iyer who spoke for the Court in both these cases, relied greatly on the teleogogical and schematic method of interpretation so as to advance the purpose of law. These constructional techniques have their own importance in the interpretation of statutes meant to ameliorate the conditions of suffering sections of the society. We have attempted to show that taking the language of the statute as one finds it, there is no escape from the conclusion that a divorced Muslim wife is entitled to apply for maintenance Under Section 125 and that, Mehar is not a sum which, under the Muslim Personal Law, is payable on divorce.'
7. The Supreme Court has taken positive view in this judgment that the Mehar not being payable on divorce, does not fall within the meaning of the provisions of Section 127(3)(b) of the Code. The Supreme Court has held specifically that the Mehar is not a sum which, under the Muslim Personal Law is payable on divorce.
8. Relying on the judgment of Mohd. Ahmed K. Khan's case (supra), the Karnataka High Court has also taken the view in case of Abdul Khader v. Smt. Razia Begum, 1991 Cri. LJ 247, that when the wife applied for maintenance having statuts of a married wife and order was passed in her favour Under Section 125 of the Code, the same cannot be cancelled Under Section 127(3)(b) of the Code on the basis of the submission of the husband that he has divorced his wife and deposited the Mehar amount as well as maintenance amount of Iddat period in the Court. Since the Mehar amount is not considered as a sum paid under customary or personal law applicable to the parties (Mohammedan Law in the instant case). Thus, the ingredients of Section 127(3)(b) of the Code have not been fulfilled by the non-applicant, he is liable to pay the maintenance as per order passed by the learned Magistrate on 28.1.1985. The Karnataka High Court has also in the case of Abdul Khader (supra), held that the application of Muslim Women Act will have protective effect. Therefore, under any provision of this Act, the order passed Under Section 125 of the Code prior to enforcement of this Act, cannot be cancelled. This Court records its full agreement with the judgment passed by the Karnataka High Court in Abdul Khader's case (supra).
9. In the result, the instant revision filed by the applicant/wife is allowed and it is held that she is entitled to receive maintenance as per order dated 28.1.1985 passed by the learned Magistrate. The impugned order passed by the lower Revisional Court dated 9.8.2001, is thus, set aside.